No Pepper Spray on Nonviolent Protesters


For immediate release                                                   
April 21, 2005

Plaintiffs Subpoena Congressman in Pepper Spray Case

Plaintiffs Subpoena Surprise Witness: Congress Member Dan Lungren, After Defense Misrepresents the Former Attorney General's Opinion

Contact:  Karen Pickett, 510-548-3113
Background and legal documents available at Press packets including video footage and courtroom drawings are available through the above number.

San Francisco, Calif.-Attorneys for Plaintiffs Suing Humboldt Country Sheriffs' Dept. and Eureka Police have subpoenaed Republican Rep. Dan Lungren as a surprise witness to testify regarding his opinion of the Q-tip swabbing of pepper spray into the eyes of Headwaters Forest demonstrators in 1997, when he was Attorney General of California.

            In a Nov. 17, 1997 letter, then-Attorney General Lungren referenced a review by his office of the Q-tip swabbing of pepper spray by law enforcement in the civil disobedience incidents in question in the case now in federal court. The letter states in strong language that the direct swabbing is "not accepted police community standards." Further, the letter states that after "conditionally" approving use of pepper spray products for use "limited to controlling hostile or violent subjects" in 1992, the office of the A.G. reviewed the 1997 Humboldt county incidents and found the direct swabbing and close range spraying "in conflict with POST [Peace Officer Standards and Training] training" and "neither supported nor directly addressed by training."

On Tuesday, attorneys defending law enforcement being sued for violation of Fourth Amendment rights for those pepper spray applications forced the issue by implying that Lungren supported guidelines that would allow pepper spray to be used on demonstrators in that way. Plaintiffs' counsel, who have been stymied in their attempts to enter the A.G.'s letter into evidence, cried foul, but their arguments against that misrepresentation could not be made in the presence of the jury.

"Our hands are tied."  said attorney Gordon Kaupp.  "Right now, the jury does not have the benefit of the full truth."  Their only recourse, they say, is to bring the former A.G. forward as a witness to testify himself about his opinion.  Lungren is now a Representative in the U.S. Congress from District 3. The entire Lundgren letter is available upon request by fax or pdf.

POST guidelines regarding use of pepper spray on non-violent protesters were changed only after the 1997 incidents when protesters challenged that use as unconstitutional.  Two Eureka officers joined the POST panel and lobbied to blur the lines between passive and active resistance in arrest situations.  The Eureka officers and Humboldt County were feeling the heat from public outrage following the airing of video footage of the sit-ins and pepper spraying on national TV. 
Lungren's Legislative office received the subpoena Wednesday afternoon for appearance Monday April 25 in federal court in San Francisco, where the trial is in process.

Court sessions continue at the S.F. Federal Building (450 Golden Gate Ave., room 10, 19th floor) before the Hon. Susan Illston. Court schedule is 8:30 am -1:30 pm.     


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